Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

High Court of Australia Brennan CJ McHugh, Gummow, Kirby and Hayne JJ Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

ORDER

1. Appeal allowed.

2. The respondent pay the appellants' costs of this appeal.

3. In lieu of the orders of the Full Court of the Federal Court of 12 December 1996, substitute the following orders:

1. The appeal be allowed and the orders made by Davies J set aside.

2. The Court Declares That cl 9 of the Australian Content Standard (the Standard) determined by the appellant on 15 December 1995 was unlawfully made.

3. The Appellant pay the costs of the appeal and of the proceedings before Davies J.

4. Each party has liberty to apply further, as it may be advised.

5. Without limiting the generality of O 4, the respondents have liberty to apply for such further or other orders as they may be entitled to arising from the alleged failure of a clause of the Standard to comply with Australia's obligations under the Australia New Zealand Closer Economic Relations Trade Agreement and the Trade in Services Protocol to that agreement.

6. There be no order in relation to the costs of the interveners.

Cur adv vult

The following written judgments were delivered:—

28 April 1998 Brennan CJ.

1. The Australian Broadcasting Authority (the ABA) has a number of "primary functions" which are listed in s 158 of the Broadcasting Services Act 1992 Cth (the Act), including, inter alia:

(h) to assist broadcasting service providers to develop codes of practice that, as far as possible, are in accordance with community standards; and

(i) to monitor compliance with those codes of practice; and

(j) to develop program standards relating to broadcasting in Australia; and

(k) to monitor compliance with those standards.

Section 159 allows for "additional functions" which may be conferred on it by the Act or another Act. Section 160 imposes general obligations on the ABA in these terms: